The most significant statement for contract attorneys in the judgments is the question of predictive coding as a substitute for coding done by humans.

In Detail

In Da Silva Moore the parties agreed to use predictive coding technology but they struggled to define a mutually agreeable protocol. The issues in Da Silva Moore focus on the complexities of attempting to apply a new technological approach to electronic document review that is transparent, accurate, and fair for all parties, whereas in Kleen Products the plaintiffs sought a court order requiring that the defendants use predictive coding technology to respond to the plaintiffs’ document requests.

It will be interesting to see – in particular – how Judge Nolan responds to the plaintiffs’ request in the Kleen Products case. The defendants might be ordered to use predictive coding technology. Alternatively they could be allowed to choose their methods and approach when responding to discovery (of course presuming that the results are fair).

According to a survey conducted by Symantec, 97% of respondents were familiar with predictive coding, yet only 12% had adopted predictive coding technology. So the current status quo is that the big sword of predictive coding is swinging pretty close to contract attorneys’ heads. The question to ask is not really if predictive coding will kill contract attorney jobs but rather when this will happen – in other words when will the courts issue reliable guidelines for predictive coding to be implemented in e-discovery processes, and how should contract attorneys deal with these changes.

What does this mean for us and our breed of fellow professionals who give our time and, often, our hearts and souls to document review projects? Perhaps we do need to be concerned about the future of our industry. We all remember the tough times the last recession meant for the contract attorney market and we do not want to go back there.

On a more positive note, it’s very likely that any implementation of predictive coding will take some time (things rarely move that quickly in law!) and won’t lead to exclusion of human contract attorneys immediately and in its totality. As with automated keyword searches, there will still be a need for contract attorneys on document reviews, in spite of the automatisation of certain processes. The opinion given by Judge Peck does not mean that computer-assisted review must be used in all cases, and so we shouldn’t all start to panic. Yet.

So, what does Contract Attorney Central advise on how to respond to the threat of predictive coding?

1. TACKLE IT! Make yourself as indisposable as possible and find extra-sensitive document reviews. There are always multiple layers of review. When it comes to document production to regulators, for example, firms are über cautious and go to extra pains to ensure that they don’t inadvertently produce anything which they don’t want ending up on the regulator’s desk.Be part of the quality check process for these reviews. Even with predictive coding, we assume firms would err on side of caution and continue to take on contract attorneys for the human element of the coding task. Plus, since they can charge out contract attorneys at a premium, there may well continue to be opportunities for you.

2. RUN!? Leave the contract attorney industry? Is this a tricky choice? Perhaps; perhaps not. Very few of us came into the contract attorney market by conscious choice, and so something else (equally or even less lucrative?) might be more appealing. It depends on your individual circumstances, of course, but it may be less stressful to ultimately leave the market. Are you a budding writer? Take a look at this post at Just Below The Law for some inspiration. We at Contract Attorney Central have a post in the pipeline about this point exactly. Sign up to our RSS feed and connect with our social networking pages to be notified of new posts when they’re published.

3. EXPLORE! Apply for a role at an e-discovery vendor. If you are sufficiently tech savvy (which we assume many contract attorneys will be after having worked on various review platforms) one way to go is to venture into the litigation support and vendor side of the business. This can be a very lucrative area of the industry, it is people- and project- focussed and can be very interesting too. Many vendors are searching for reviewers with hands-on experience of their, and competitors’ systems. Several of these have also made some very promising predictions on their future growth. If Judge Peck has started the ball rolling on the demise of the human contract attorney, think about getting in with the bigger boys.

Thank you for reading our post! We here at Contract Attorney Central appreciate your time reading our content and we hope it is helpful.

What do you think about the decision in these cases? Are you concerned about the future of the market and what are you doing to mitigate the damage? Let us know – we’re always interested to hear from you!

Interesting points and having read the reaction at least to one of the instances to which you refer, I can say that I initially thought that there might be something in what’s proposed (perhaps tangentially), and that there might be a threat; however, realistically, predictive coding, considering the risks it potentially presents to firms & the protagonists, and noise ratio (and this will remain a constant even in self-learning systems) – i.e. false positives / negatives – will never really come close to being able to replace human capital irrespective of how disconnected some specimens of the latter may appear when observed in the wild…..

Rather, what could, and I’d argue that it indeed should, happen is for predictive coding to enter the scene in order to manage the sheer volume of first level review in a world where the discovery phase is increasingly getting closer to the American (speaking from the UK) model, which is traditionally more broad and generously hit-generating. Moreover, just imagine the negotiation process between the parties as to how such a system would operate – now, think back to a time when you were involved in negotiating search terms with another party or a regulator……easy, quick and straightforward process??? Fortunately, not so much!

To reiterate, in an initial (e.g. during relevance review), ‘predictive coding or analysis’ – also, this term seems to be a ridiculous, disingenuous, and deliberate misnomer coined merely to instil false-confidence in such a system, which, inherently, and in fact, is not predictable – could add value by reducing the size of the overall document pool and removing some of the random errors, which are frequently introduced by early stage/junior reviewers; however, it is unlikely to (for a considerable number of years in any event) replace or replicate the deductive capability that an experienced lawyer brings to the table.

I agree with the article’s assessment of predictive coding. The question is not whether predictive coding will be used; rather the question is in what capacity will predictive coding be used (i.e. how large is the size of documents to be reviewed).

Of the three suggestions, #2 is a wee bit extreme. There is no reason to run. Changing your focus AWAY from document review is probably a better suggestion. An attorney can do many different tasks as a contract attorney. Explore new trends and make a niche.